Notice of termination – your questions answered

Notice of termination – your questions answered

By Paul Munro on 22 May 2018 WorkplaceInfo recently held a Q&A webinar which received more than 50 questions from subscribers on a wide range of employment-related issues. Due to time constraints it was not possible to address each question.

This article tackles some of the questions raised on notice of termination, be it notice by the employer or an employee’s resignation.

How to give notice?


When terminating a contract of employment an employer must provide the appropriate period of notice prescribed by the Fair Work Act.

Employees must provide the notice required under a modern award (if applicable) or an individual contract of employment. While notice of termination by an employer, or resignation by an employee, would appear to be a straightforward exercise, this is not necessarily the case.

What notice period applies?


Questions on this topic relate to the appropriate period of notice an employee needs to give under various circumstances, including where a contract of employment does not contain terms about notice periods. Some employers think the minimum periods of notice under the National Employment Standards apply in all circumstances. This is not necessarily the case.

The following are the four most common questions relating to the period of notice of termination to be given by an employer to an employee:
  1. Is there a notice period in the contract of employment? If yes, the contract notice period will apply if it is greater than the National Employment Standards. If the notice period in the contract of employment is less than the Standards, the Standards will prevail.
  2. Is the contract of employment for a fixed term or specific task? The contract ceases at the end of the fixed term or specific task. No notice of termination is required.
  3. If there is no notice period in the contract of employment (and it is not for a fixed term or specific task)? If yes, the notice of termination provisions in the applicable modern award or enterprise agreement will apply. These usually specify the minimum notice period provisions under the National Employment Standards. If the person is an award/agreement free employee, then reasonable notice will apply.
  4. If there is no contract of employment? Reasonable notice will apply.
Note: The period for giving notice of termination by an employer to an employee under the National Employment Standards is the minimum period an employer must give (or pay in lieu) on termination of employment.

How should notice be given?


The Fair Work Act (s117) requires an employer to give an employee notice of termination, in writing. Failure to do so may be in breach of the Fair Work Act, but may not necessarily mean a termination of employment has not been effected.

Generally, a termination of employment is considered not to take effect unless and until it is properly communicated to the other party. This could include notice being given verbally, although this would not satisfy the Fair Work Act where verbal notice is given by an employer.

The Acts Interpretation Act 1901 [Cth] (sections 28A & 29) provide how notice may be given. In particular, notice may be given to an employee by:
  • delivering it personally
  • leaving it at the employee’s last known address, or
  • sending it by pre-paid post to an employee’s last known address.
In the case of an employee’s resignation, an employer should request a resignation in writing so as to avoid any misunderstanding, although this may difficult to obtain from an employee in some circumstances.

There is nothing to prevent an employer from accepting a verbal resignation, including over the telephone. However, an employer should seek confirmation, preferably in writing, from an employee or, in the latter case, verify the identity of the caller on the telephone.

Where verbal notice is given by an employee at the workplace, it may be prudent for an employer to have a witness to the resignation. An employer’s request for an employee’s resignation in writing is to avoid any ‘heat of the moment’ decisions that an employee may later regret.

Notice by email


An employee was dismissed for being absent from work on personal leave after her medical certificate had expired. The employer dismissed the employee by email without attempting to contact the employee first. It was found that the employee was not notified of the reason for her dismissal. It was held that it was not satisfactory that the employee was given an opportunity to discuss the dismissal after it had taken effect. See Gooch v Proware Pty Ltd T/A TSM (The Service Manager) [2012] FWA 10626 (20 December 2012).

Notice by text message


In dismissing an employee, an employer must give notice in an appropriate form, preferably in writing, but usually face-to-face. Giving notice by other means, such as via a text message to a person’s mobile phone, is usually viewed as inappropriate, although circumstances may exist where texting is the only alternative to giving proper notice.

In a matter before (then) Fair Work Australia, a shop assistant was notified of her dismissal by text message. It was viewed as being an inappropriate means for notifying the employee of her dismissal because it deprived her of the opportunity to respond, or offer an explanation or defence regarding the issues raised. This denied her natural justice. See Sokolovic v Modestie Fashion Australia Pty Ltd (ABN: 671444920838) [2011] FWA 3063 (18 May 2011).

(Then) Fair Work Australia determined that, in most situations, texting is not appropriate when terminating an employee’s employment. However, in this particular matter, it was determined that had there been a face-to face meeting, the outcome would have been the same. The employee had been given a chance to respond to the allegations during a telephone conversation and the employer texted the dismissal because the employee was away on leave and about to go overseas. See Martin v DecoGlaze Pty Ltd [2011] FWA 6256 (15 September 2011).

Can notice be withdrawn?


Circumstances have occurred where an employee seeks to withdraw a notice of termination. Where an employer accepts an employee’s notice and does not allow the employee to withdraw it, an employee may claim unfair dismissal on the grounds the employer was unreasonable in not accepting the withdrawal of notice.

Notice, once given by an employer, cannot be withdrawn, except with the agreement of the employee. The reason for this is that an employee may have already obtained employment with another employer, with the result that if an employer could unilaterally withdraw notice, the employee could be bound by two concurrent contracts of employment. See Birrell v Australian National Airlines Commission [1984] FCA 378; 9 IR 101/5 FCR 447 (7 December 1984).

The same logic applies to the withdrawal of notice by an employee. The requirement for an employee to give the appropriate period of notice is to allow an employer sufficient time to fill the position. If an employee could withdraw notice at any time it could result in the replacement employee being left without a job, having already terminated his/her employment with the previous employer to accept the vacated position. See Gunnedah Shire Council /Cross v. GROUT /Cross [1995] IRCA 694 (19 December 1995).

An exception to this is where the mental state of the employee at the time of the resignation meant the giving of notice was not considered a voluntary act.

Heat of the moment


If the words of a resignation are unambiguous, then an employer is entitled to treat them as such. However, words may be said by an employee “in the heat of the moment”, which industrial tribunals refer to as ‘special circumstances’.

Where special circumstances arise it may be unreasonable for an employer to assume a resignation and accept it forthwith. A reasonable period of time should be allowed to lapse. If circumstances arise during that period which put an employer on notice that further enquiry is desirable to see whether the resignation was really intended, then such inquiry is ignored at the employer’s risk. Evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively. See Ngo v Link Printing Pty Ltd - 771/99 N Print R7005 [1999] AIRC 57; (22 January 1999); MINATO v. PALMER CORPORATION LTD [1995] IRCA 316 (30 June 1995).

(Then) Fair Work Australia determined that an employee who resigned in the ‘heat of the moment’ and who tried to withdraw the resignation later that day did not retract it swiftly enough. The employee had no unilateral right to withdraw his resignation and the employer had the right to accept the resignation and did so. See Tisocco v Fortunato Group T/A Merri Constructions [2011] FWA 6466 (21 September 2011).

In a matter before the Fair Work Commission, an employee argued he was in “an unacceptable working environment and dangerous behaviours existed”. He tendered his resignation, then withdrew it. The Fair Work Commission noted the employer had accepted the applicant’s withdrawal of his resignation so it was unreasonable to act on the resignation. To try to enforce the resignation amounted to unfair dismissal.  See Vallence v Darlea Pty Ltd [2015] FWC 1267 (5 March 2015).

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